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United States v. Slough

United States District Court, D. Columbia.

June 16, 2014

UNITED STATES OF AMERICA
v.
PAUL A. SLOUGH, EVAN S. LIBERTY, and DUSTIN L. HEARD, Defendants. UNITED STATES OF AMERICA
v.
NICHOLAS A. SLATTEN, Defendant

Page 2

For Paul Alvin Slough (1:08cr360), Defendant: Brian Matthew Heberlig, Mark Joseph Hulkower, Michael Jeremy Baratz, LEAD ATTORNEYS, Bruce Charles Bishop, Linda C. Bailey, Scott P. Armstrong, STEPTOE & JOHNSON, L.L.P., Washington, DC; Thomas C. Hill, LEAD ATTORNEY, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For Evan Shawn Liberty (1:08cr360), Defendant: Brian Matthew Heberlig, LEAD ATTORNEY, Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; Brian John Rooney, LEAD ATTORNEY, Brandon M. Bolling, THOMAS MORE LAW CENTER, Ann Arbor, MI; William Francis Coffield, IV, LEAD ATTORNEY, Amanda Montee, COFFIELD LAW GROUP, LLP, Washington, DC; Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, MI; Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC.

For Dustin Laurent Heard (1:08cr360), Defendant: Brian Matthew Heberlig, LEAD ATTORNEY, Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; David Schertler, LEAD ATTORNEY, Janet Foster, LEAD ATTORNEY, PRO HAC VICE, Danny C. Onorato, Lisa Hertzer Schertler, SCHERTLER & ONORATO LLP, Washington, DC; Steven J. McCool, MALLON & MCCOOL, LLC, Washington, DC.

For Donald Wayne Ball (1:08cr360), Defendant: Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; Danny C. Onorato, LEAD ATTORNEY, SCHERTLER & ONORATO LLP, Washington, DC; Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC.

For Jeremy P. Ridgeway (1:08cr360), Non-Party Petitioner: Thomas C. Hill, William M. Sullivan, Jr., LEAD ATTORNEYS, Keith David Hudolin, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For William M. Sullivan, Jr., Ryan R. Sparacino, Pillsbury Winthrop Shaw Pittman Llp (1:08cr360), Non-Party Petitioner: Thomas C. Hill, Keith David Hudolin, LEAD ATTORNEYS, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For Washington Post (1:08cr360), Interested Party: James Amazaki McLaughlin, THE WASHINGTON POST, Washington, DC.

For Associated Press (1:08cr360), Interested Party: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY.

For Center on Administration of Criminal Law (1:08cr360), Amicus: Daniel Joseph, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD, LLP, Washington, DC; Anthony S. Barkow, CENTER ON THE ADMINISTRATION OF CRIMINAL LAW N.Y. University School of Law, New York, NY.

For Nicholas Abram Slatten (1:14cr107), Defendant: Thomas Gerard Connolly, LEAD ATTORNEY, Anne Katherine Langer, Steven A. Fredley, HARRIS, WILTSHIRE, & GRANNIS LLP, Washington, DC; Jared P. Marx, PRO HAC VICE, HARRIS, WILTSHIRE, & GRANNIS LLP, Washington, DC; .

Page 3

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

Before the Court is the government's motion [444] to exclude the expert testimony of various defense experts. Upon consideration of the government's motion, the defendants' opposition [473], the government's reply to that opposition [497], oral argument held on May 29, 2014, the applicable law, and the entire record herein, the Court will GRANT in part, DEFER in part, and DENY in part the government's motion to exclude defendants' expert testimony.

I. BACKGROUND

Both the District Court and the Court of Appeals for the District of Columbia Circuit have previously described the factual background of this case. United States v. Slough, 677 F.Supp.2d 112, 116-129 (D.D.C. 2009) (" Slough I" ), vacated, 641 F.3d 544, 555, 395 U.S.App.D.C. 178 (D.C. Cir. 2011) ( " Slough II" ); Slough II, 641 F.3d at 547-49. Thus, the

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Court will now only highlight the relevant facts and procedural background.

On April 25, 2014, the defendants sent letters to the government, as required by Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure (" Rule 16" ), notifying the government of their intent to call ten different expert witnesses in the upcoming trial in this matter,. Gov't.'s Mot. at 1. On May 16, 2014, the government timely filed the instant motion, which asks this Court to exclude the testimony of nine of those witnesses: Urey Patrick; Col. David Bolgiano; William Conrad; William Tobin; Dr. Frederick Schmidt; Don Mikko; Michael Haag; Dr. Michael Baden; and Dr. Henry Lee. See generally Gov't.'s Mot. The government first states that the testimony of Mr. Patrick and Col. Bolgiano should not be admitted under Rule 702 of the Federal Rules of Evidence (" Rule 702" ) and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), alleging that those two witnesses lack the requisite qualifications for the Court to accept their opinions as expert testimony and because their opinions do not meet the relevance standard of Daubert and Rule 702. Gov't.'s Mot. at 4-15. Additionally, the government states that, for each of the nine above-mentioned witnesses, the defendants did not provide adequate summaries of the expert testimony under Rule 16, and that this Court should exclude the testimony on those grounds. See generally Gov't's Mot.

II. LEGAL STANDARD

Rule 702 governs admissibility of expert testimony at trial. It states that " [a] witness who is qualified as an expert by knowledge, skill, experience, training, training, or education may testify in the form of an opinion or otherwise if:"

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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